# State v. Stacy

> West Virginia Supreme Court · July 21, 1989 · 181 W. Va. 736

URL: https://www.frixlaw.com/law-library/cases/9561014

## Case

- **Full name:** STATE of West Virginia v. Bobby Dean STACY
- **Court:** West Virginia Supreme Court
- **Decided:** July 21, 1989
- **Citations:** 181 W. Va. 736; 384 S.E.2d 347; 1989 W. Va. LEXIS 187
- **Precedential status:** Published
- **Opinion:** Dissent by Brotherton
- **Judges:** Workman, Brotherton
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9561014

## Opinion text

BROTHERTON, Chief Justice,
dissenting:
I strongly dissent from the majority opinion reversing the felony-murder conviction of Bobby Dean Stacy and remanding the case to the Cabell County Circuit Court for a new trial.
After reading the majority opinion, I understand how the public might believe that there is no equal justice under the law. In State v. Mayle, 178 W.Va. 26 , 357 S.E.2d 219 (1987), Stacy’s co-defendant in the murder of Officer Harmon was tried and found guilty. His conviction was affirmed by this Court despite the same defect the majority clings to in this opinion. Yet the majority justifies the Mayle affirmance by claiming that the trial court “at least instructed the jury that the State had the constitutional duty of proving felony-murder beyond a reasonable doubt.” At footnote 4 of its opinion, the majority cites in full the Stacy Court’s Instructions Nos. 2 and 6, which clearly instruct the jury about the State’s burden of proving the crime beyond a reasonable doubt. How does this differ from Mayle?
In order to reverse the Stacy conviction, the majority adopted the plain error doctrine contained in Rules 30 and 52(b) of the West Virginia Rules of Criminal Procedure. The majority admits that we rarely recognize plain error, even of constitutional magnitude, unless it substantially affects the defendant’s rights. I am hard pressed, in fact unable, to find the error which the majority claims substantially affected Stacy’s rights and impaired the truth-finding process to the extent it resulted in a miscarriage of justice. Moreover, the majority does not claim the “substantial error” rises to a constitutional level.
The majority finds reversible error in the trial court’s failure to instruct on the elements of the criminal offense of robbery, an underlying element of felony-murder in this case. This error was not objected to by the defendant during trial, but was raised for the first time on appeal. The defendant’s highly qualified Ohio attorney never once argued that the State had failed to prove felony-murder. The jury, brought in from Grant County to satisfy a change of venue motion, heard evidence for six days and within one hour found a verdict of guilty of first degree murder without a recommendation of mercy. This Court has never held that the failure to instruct the jury as to the underlying felony in a felony-murder case constitutes reversible error. Regardless of the case law in other states, I can see no reason to do so in this case.
We are asked to believe that the substantial rights of the defendant were impaired because a jury instruction setting out the elements of robbery were not read to the jury. In syllabus point 2 of State v. Hatala, 176 W.Va. 435 , 345 S.E.2d 310 (1986), this Court recognized the existence of the plain error doctrine, but cautioned that it “is to be used sparingly and only in those circumstances in which a miscarriage of justice would otherwise result.” (Em *747 phasis added.) 1 In light of the substantial evidence presented at trial, I believe the majority’s opinion results in a miscarriage of justice to the citizens of this State. Quite simply, I do not believe that the failure to instruct the jury on the underlying felony substantially impaired the truth-finding process of the jury so as to result in a miscarriage of justice to Bobby Dean Stacy. 2
. See United States v. Young, 470 U.S. 1, 15 , 105 S.Ct. 1038, 1046 , 84 L.Ed.2d 1, 12 (1985), in which the United States Supreme Court stated that the plain error doctrine is to be “‘used sparingly, solely in those circumstances in which a miscarriage of justice would otherwise result.’ United States v. Frady, supra [ 456 U.S. 152 ], at 163, n. 14, 71 L.Ed.2d 816 , 102 S.Ct. 1584 [1592]. [ (1982) ]."
. This case was not reversed on the question of Mr. Norman’s identification. The discussion of that question was pointed out in the majority opinion for the benefit of the court when and if the case is retried.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9561014. Public record. Not legal advice.